- (1.) This appeal has been filed by the assessee under Section 35G of the Central Excise Act, 1944 against an order of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), dismissing an appeal on the ground of limitation. Though several questions of law have been raised, the following question would be sufficient for disposal of the appeal. "Whether in the facts and circumstances of the case there can be a deemed service of the order on the appellant merely because it was sent under registered cover and no acknowledgment was received more so than there was a specific rebuttal in the form of affidavit filed by the appellant." On 10 December, 2008, a notice to show cause was issued to the appellant and to its Director to explain as to why Cenvat credit amounting to Rs. 97,990/-, which had been taken and utilized should not be demanded together with interest and why a penalty under the Cenvat Credit Rules should not be imposed. Both the appellant and its Director filed a reply on 15 December, 2008 and 16 January, 2009. An order of adjudication was passed by the Deputy Commissioner, Central Excise on 18 March, 2009, confirming the demand and imposing a penalty in the like amount on the appellant and its Director. Appeals were filed by the appellant and its Director before the Commissioner (Appeals), Luck-now. The appeal filed by the appellant was dismissed on 23 November, 2009 and that filed by its Director was dismissed on 28 January, 2010.
(2.) The order of the Commissioner (Appeals) was challenged by the appellant's Director before the CESTAT. The CESTAT allowed the appeal filed by the Director of the appellant. On 1 May, 2010 and on 4 May, 2010 the Superintendent Appeals informed the appellant that the appeal filed by the appellant had already been decided on 23 October, 2009 by the Commissioner (Appeals). On 17 June, 2010, the appellant served a letter in the office of the Commissioner (Appeals) stating that the order passed in the case of the appellant had not been served and requested that a copy of the order may be remitted to the appellant for which copying charges were duly deposited. There was no response to the letter. Thereafter on 13 June, 2011, the appellant wrote to the Chief Commissioner, Central Excise, Lucknow, seeking a direction for the issuance of a certified copy of the order passed by the Commissioner (Appeals). On 24 June, 2011, the Superintendent in the office of the Commissioner (Appeals), informed the appellant that the order-in-appeal had been dispatched by the registered post on 1 December, 2009. On 3 August, 2011, the Superintendent, Central Excise, called upon the appellant to deposit the amount outstanding in terms of the order dated 23, November, 2009. The appellant thereupon filed an affidavit on 27 February, 2012 before the Commissioner (Appeals) stating that the order-in-appeal had not been served and once again sought a certified copy thereof. The Commissioner (Appeals) by an order dated 10 December, 2012 directed the appellant to furnish a certificate from the postal authorities, stating that the order has not been received. Eventually, on 20 October, 2012 in pursuance of a request for disclosure of information under the Right to Information Act, a photocopy of the order-in-appeal was provided to the appellant. The appellant filed an appeal before the CESTAT on 17 January, 2013 and filed a Miscellaneous Application contending that the appeal was within time from the date of the actual communication of the order. The appeal has been dismissed by the impugned order of the Tribunal.
(3.) Under Section 35B(3) of the Central Excise Act, 1944, the appeal before the Tribunal against an order passed by the Commissioner has to be filed within a period of three months from the date on which the order sought to be appealed against is communicated. However, under sub-section (5), the Tribunal is permitted to admit an appeal after the expiry of the relevant period referred to in sub-section (3), if it is satisfied that there was sufficient cause for not presenting it within that period.;